“In the realm of Nature there is nothing purposeless, trivial, or unnecessary” ― Maimonides, The Guide for the Perplexed

David Bier of the Cato Institute in No One Knows How Long Legal Immigrants Will Have To Wait calculates that there are “somewhere between 230,000 and 2 million workers in the India EB-2 and EB-3 backlogs, so they’ll be waiting somewhere between half a century and three and a half centuries. It is entirely possible that many of these workers will be dead before they receive their green cards.” This is stunning, and a damming indictment of the broken and shambolic legal immigration system of the United States.

The backlogs in the India and China employment-based second (EB-2) and employment-based third (EB-3) preferences have made the employment-based immigration system completely unviable. It makes no sense for an employer to test the US labor market, obtain labor certification and classify the foreign national employee in the EB-2 and EB-3 through an approved I-140 petition, and then wait endlessly for decades for the green card. It is also hopelessly frustrating for the foreign national to be waiting endlessly. As Bier’s report points out, the wait may absurdly be beyond the lifetime of the employee and the sponsoring entity. One is also penalized based on where you were born. Although each employment-based preference has a limited supply of green cards each year set by law, the backlog is further compounded due to the per country limit. A person born in India or China, no matter what his or her present nationality may be, is charged to the country of birth. Currently, India and China are more oversubscribed than other countries in the EB-2 and EB-3 backlogs. Therefore, as espoused in The Tyranny of Priority Dates, one born in India or China suffers a worse faith than a person born in Sweden or Ghana in the employment-based backlogs, and this is tantamount to invidious discrimination.

Hence, the burning question in the mind of a perplexed foreign national stuck in the EB-2 or EB-3 backlog who was born in India and China is how can I improve my situation and get the green card more quickly? This blog will offer some guidance.

Upgrade from EB-3 to EB-2

Can you upgrade from EB-3 to EB-2? If so, your employer will have to sponsor you for a position that requires an advanced degree or a bachelor’s degree plus five years of post-baccalaureate experience. There may be circumstances where you may have been promoted or up for a promotion, and the new position may justify an advanced degree, and this may be a good opportunity to once again be sponsored for a green card under the EB-2 if you were originally sponsored under EB-3. Alternatively, a new employer can sponsor you under EB-2. If the labor certification is approved for the new position, along with the I-140 petition, the priority date from the EB-3 I-140 petition can potentially be captured for the new EB-2. You will be able to advance closer to the green card in the new EB-2 queue through this upgrade, and may also be current to receive a green card. For example, if your priority date on the EB-3 petition was November 1, 2007, and if you recaptured it for the new EB-2 petition, then you will be current, as the EB-2 India Final Action cutoff date is November 1, 2007 according to the November 2016 Visa Bulletin. The difference between a Filing Date and Final Action Date is explained below.

Not everyone can qualify for an upgrade. If you do not have the equivalent of a US Master’s degree, or the equivalent of a single source 4 year US bachelor’s degree plus 5 years of progressive experience following such a bachelor’s degree, you will likely not be eligible to qualify under the EB-2. Also, be careful about preserving the age of your child under the Child Status Protection Act, as an EB-3 to EB-2 boost may not always protect the child’s age.

Qualifying as a Person of Extraordinary Ability under EB-1A

Some may be able to qualify as a person of extraordinary ability under the employment-based first preference (EB-1A), which is current for India and China. Of course, the standard to qualify under EB-1 is extremely difficult, but it does not hurt for one to at least think about it if you readily meet three out of the ten criteria for demonstrating extraordinary ability. You may have received more acclaim over the years in your career while waiting in the backlogs without knowing it, even if you may not have won major awards or written books or published scholarly articles. For example, in business fields, people have qualified if they have made outstanding contributions of major significance to the field, worked in a leading or critical capacity for organizations with a distinguished reputation and commanded a salary higher than others in the same positions. Even if you meet 3 out of the 10 criteria, the USCIS can still subjectively determine whether you are indeed a person of extraordinary ability with sustained national or international acclaim. Thus, the USCIS can still deny an EB-1A petition even if you meet the three criteria.

Qualifying as an Outstanding Professor or Researcher under EB-1B

If you get a position in a university that is tenure track or comparable to a tenure track position, and you can demonstrate that you are an internationally recognized professor or researcher, you may be able to qualify under EB-1B, which is also current for India and China. In addition, you will need to have at least 3 years of experience in an academic area. Demonstrating yourself as an outstanding professor or researcher is slightly less demanding than demonstrating extraordinary ability as you need to meet two out of six criteria. Interestingly, one can also qualify as an outstanding researcher through a private employer if it employs at least 3 full time researchers and has achieved as an organization, or through a department or division, documented accomplishments in an academic field. Still, like with the EB-1A person of extraordinary category, the USCIS can make a negative subjective determination even after you have met two out of the six criteria in an EB-1B petition.

Qualifying as a Multinational Executive or Manger under EB-1C

Yet another option is to explore whether your employer can assign you to a foreign parent, subsidiary, branch or affiliate as an executive or manager. After fulfilling a year of qualifying employment at the overseas entity, you may be able to qualify for a green card as an intracompany transferee executive or manager under the employment-based first preference (EB-1C) if you take up a similar position with the employer in the US. The EB-1 for multinational managers and executives is also current as it is for persons of extraordinary ability.

Job Creation Investment under EB-5

For those who may have a high net worth, and have amassed over $500,000, can consider passively investing in a project within a Regional Center under the employment-based fifth preference (EB-5). Although the EB-5 is not current for China, it is current for India. Still, the EB-5 requires you to put your capital at risk, and there is always a possibility that you could lose your investment along with not being able to obtain the green card. There is also a possibility of the law changing retroactively after December 9, 2016.

Cross Chargeability through Marriage

While marrying a U.S. citizen may be the panacea to your problems, provided the marriage was in good faith, even marrying a foreign national not born in India or China would allow you to cross charge to the spouse’s country of birth, which may not be experiencing the same backlogs in the EB-3, or may be current under the EB-2.

Filing I-485 Application Under the Filing Date in Visa Bulletin

There is a small saving grace that you can use the Filing Date in the Visa Bulletin to file an I-485 adjustment of status application. Under the November 2016 Visa Bulletin, an EB-2 beneficiary, for example, can file an I-485 application for adjustment of status if his or her priority date is on or before April 22, 2009 if born in India and March 1, 2013 if born in China. While the Filing Date only allows the applicant to file, it is the Final Action date that determines whether the applicant will be granted permanent residence. Note that under the new visa bulletin system introduced since October 2015 that created the dual Filing Date and Final Action Date, the USCIS will determine whether the filing date is applicable each month for purposes of filing adjustment of status applications. In the event that the USCIS determines that the filing date is not applicable, applicants will need to rely on the final action date in order to file an adjustment of status application within the US. In November 2016, the USCIS has allowed filing I-485 applications under the Filing Date as it did in October 2016. Thus, while the Filing Date for India EB-2 is April 22, 2009, which allows for the filing of the I-485 application, the Final Action Date is November 1, 2007, which is when the green card is actually issued. Upon the filing of an I-485 application, the applicant can enjoy some of the benefits of an I-485 application such as job portability, travel permission, and open market work authorization as well as work authorization for derivative family members.

Conclusion – Continue to Advocate for Immigration Reform

While no means exhaustive, these are a few options worthy of further exploration. In the end, notwithstanding available options, you may still not qualify and be forced to remain in the EB-2 or EB-3 backlogs. Still, do not accept your fate and actively advocate for immigration reform in Congress. The Fairness for High Skilled Immigration Act, HR 213, eliminates the per country limits in the employment-based preferences and doubles the limit to 15 % to family sponsored immigrants. The bill has amassed about 127 co-sponsors from both parties, and could potentially pass if it was put up for a vote today. However, even if HR 213 becomes law, there will still be backlogs. There is also great scope to comprehensively reform and fix the broken immigration after we elect a new President and Congress. Finally, one should continue to press this and the next administration to implement administrative reforms. For example, in The Family That Is Counted Together Stays Together: How To Eliminate Immigration Visa Backlogs, Gary Endelman and I advocated that there is nothing in the Immigration and Nationality Act that requires each derivative family member to be counted on an individual basis against the worldwide and country caps. If the entire family was counted as one unit, instead of separately, imagine the additional green cards that would become available, resulting in a dramatic reduction of the backlogs. There is also an arguable basis for the Filing Date to be current under the Thanksgiving Turkey theory. In conclusion, do not feel hopeless and dejected. Consider all available options, and if you are still not eligible for those options, press hard for legislative and administrative changes. Every effort has a purpose, and if it is inherently for a just cause, there is that much more of a moral imperative for it to be realized and come to fruition.

A proposed DHS rule entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” has disappointed beneficiaries of I-140 employment-based immigration visa petitions who are caught in the crushing employment-based preferences. Everyone was waiting with bated breath about how the rule would allow beneficiaries to apply for an employment authorization document (EAD) based on an approved I-140 petitions. The proposed rule was announced on New Year’s Eve, December 31, 2015, but the balloon hastily deflated well before New Year. EADs would be issued in a very niggardly manner. This blog’s focus is not to explain every aspect of the proposed rule, and refers readers to Greg Siskind’s detailed summary, but suggests that the DHS also consider adding a rule to allow early filing of an I-485 adjustment application. Including a rule that would allow early filing of an I-485 application, along with some of the ameliorative provisions in the proposed rule, would truly make the rule positively impactful to those who are seeking relief.

Under the proposed rule, DHS will provide EADs to beneficiaries in the United States on E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status if they can demonstrate compelling circumstances. While compelling circumstances have not been defined in the rule, DHS has suggested that they include serious illness and disabilities, employer retaliation, other substantial harm to the applicant and significant disruption to the employer. Regarding what may constitute significant disruption; DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that may no longer render an L-1 visa status valid. The EAD will be renewed if such compelling circumstances continue to be met, or if the beneficiary’s priority date is within one year of the official cut-off date.

As a result of these stringent standards, very few I-140 beneficiaries will be able to take advantage of this EAD provision. Furthermore, in order to keep the existing I-140 petition valid, the sponsoring employer must continue to offer the position to the beneficiary. While the recipient of an EAD can engage in open market employment, he or she must intend to work for the sponsoring employer upon the issuance of permanent residency. It is hoped that the final rule will provide a broader basis for beneficiaries of approved I-140 petitions to obtain EADs without needing to show compelling circumstances. INA 274A(h)(3) provides broad authorization to the DHS to issue work authorization to any non-citizen. While there is broad authority in the INA to issue an EAD, it is difficult to conceptualize how such a beneficiary may be able to port to another employer without a pending I-485 application. INA 204(j) requires an I-485 application to be pending for more than 180 days before a worker can change jobs in a same or similar occupational classification, while still keeping the I-140 petition and underlying labor certification intact. On the other hand, a new employer can re-sponsor a worker if he or she has an EAD through a new I-140 petition, while retaining the priority date of the old petition, upon which the worker can consular process for the immigrant visa if not in a valid nonimmigrant status at the time the final action date becomes current.

Although the centerpiece proposal is disappointing, there are some bright spots. I-140 petitions that have been approved for at least 180 days would not be subject to automatic revocation due to a business closure or withdrawal by the employer. DHS has invoked its discretion under INA 205 to retain an I-140 even if an employer withdraws it or the business closes. This assurance would allow workers who have pending I-485 applications for 180 days or more to safely exercise job portability under INA 204(j), although this dispensation is not possible if USCIS revokes the I-140 based on a prior error. Even those without pending I-485 applications could take advantage of this provision to obtain H-1B extensions beyond six years under the American Competitiveness in the 21stCentury Act (AC 21). They would also be able to keep their priority dates if a new employer files another I-140 petition.

The proposed rule would also allow workers whose jobs are terminated a grace period of 60 days if they are holding E-1, E-2, E-3, H-1B, H-1B1, L-1 or TN status. There will also be automatic extensions of an EAD for 180 days, but will take away the mandatory processing time for an EAD within 90 days.

Notwithstanding the stingy circumstances under which the DHS proposes to issue EADs to beneficiaries of approved I-140 petitions, the proposed rule could be salvaged, and truly resurrected, if workers can file early I-485 adjustment of status applications. While the proposed rule has not touched upon this, the DHS must revisit the innovation that was made in the October 2015 Visa Bulletin by creating a filing date and a final adjudication date. Although the filing dates got substantially pulled back in the EB-2 for India and China shortly before the new visa bulletin took effect on October 1, resulting in a lawsuit, DHS has a chance to redeem itself through this rule to truly benefit high skilled workers.

INA 245(a)(3) allows for the filing of an I-485 application for adjustment of status when the visa is “immediately available” to the applicant. The Department of State (DOS) has historically never advanced priority dates based on certitude that a visa would actually be available. There have been many instances when applicants have filed an I-485 application in a particular month, only to later find that the dates have retrogressed. A good example is the April 2012 Visa Bulletin, when the EB-2 cut-off dates for India and China were May 1, 2010. In the very next May 2012 Visa Bulletin a month later, the EB-2 cut-off dates for India and China retrogressed to August 15, 2007. If the DOS was absolutely certain that applicants born in India and China who filed in April 2012 would receive their green cards, it would not have needed to retrogress dates back to August 15, 2007. Indeed, those EB-2 applicants who filed their I-485 applications in April 2012 are still waiting and have yet to receive their green cards even as of today! Another example is when the DOS announced that the July 2007 Visa Bulletin for EB-2 and EB-3 would become current. Hundreds of thousands filed during that period (which actually was the extended period from July 17, 2007 to August 17, 2007) . It was obvious that these applicants would not receive their green cards during that time frame. The DOS then retrogressed the EB dates substantially the following month, and those who filed under the India EB-3 in July-August 2007, also known as the class of 2007, are still waiting today.

These two examples, among many, go to show that “immediately available” in INA 245(a)(3), according to the DOS, have never meant that visas were actually available to be issued to applicants as soon as they filed. Rather, it has always been based on a notion of visa availability at some point of time in the future. The Visa Bulletin in its new reincarnation, notwithstanding the pulling back of the filing dates prior to October 1, 2015, now views it more broadly as “dates for filing visa applications within a time frame justifying immediate action in the application process.” The USCIS similarly views visa availability opaquely as “eligible applicants” who “are able to take one of the final steps in the process of becoming U.S. permanent residents.” These new interpretations provide more flexibility for the State Department to move the filing date even further, and make it closer to current. While it is acknowledge that certain categories like the India EB-3 may have no visa availability whatsoever, DOS and DHS can reserve one visa in the India EB-3 like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the alien beneficiary. So long as there is one visa kept available, the proposal to allow for an I-485 filing through a provisional filing date would be consistent with INA §245(a)(3).

The author has proposed the following amendments to 8 C.F.R. § 245.1(g)(1) in the past with Gary Endelman (who has since become an Immigration Judge), shown here in bold, that would expand the definition of visa availability:

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current) (“final action date”). An immigrant visa is also considered available for submission of the I-485 application based on a provisional priority date (‘filing date”) without reference to the final action date. No provisional submission can be undertaken absent prior approval of the visa petition and only if all visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current final adjudication date.An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

If early adjustment filing consistent with INA 245(a)(3) is included in the final rule, imagine how many more workers will benefit from it. Having an actual rule in place, as proposed, will prevent the shenanigans that obstructionists in the USCIS have engaged in by arbitrarily holding back the filing date, and in recent months, not even recognizing it for purposes of filing I-485 applications. While an EAD of an approved I-140 will also be beneficial, being able to port off a pending adjustment application under INA 204(j) would allow the retention of the earlier I-140 petition (and underlying labor certification), without the need for an employer to file a new labor certification and I-140 petition. The filing of the I-485 application would also be able to protect a child from aging out under the Child Status Protection Act, which an EAD off an approved I-140 would not be able to do. Folks whose filing date would not be current could still take advantage of the EAD based on an approved I-140, but for those who can file an early I-485, they would incur many more benefits, including the ability to exercise true portability and eventually adjust to permanent residence in the United States.

Central in the Mehta v. DOS lawsuit is whether the administration is authorized to establish a dual date system in the Department of State’s (DOS) Visa Bulletin, which it did for the first time in October 2015. When the DOS first issued the October 2015 Visa Bulletin on September 9, 2015, it established a filing date, which allowed applicants to file for adjustment of status much earlier than the final action date. On September 25, 2015, in a revised October 2015 Visa Bulletin, the administration abruptly moved back some of the filing dates by at least two years, thus depriving thousands from filing I-485 adjustment of status applications on October 1, 2015. A lawsuit was filed challenging this revision in the filing dates, including a motion for a temporary restraining order. The government has filed pleadings in opposition to the TRO, which includes a declaration from Charlie Oppenheim.

INA 245(a)(3) allows for the filing of an I-485 application for adjustment of status when the visa is “immediately available” to the applicant. 8 C.F.R. 245.1(g)(1) links visa availability to the Department of State’s (DOS) monthly Visa Bulletin. Pursuant to this regulation, an I-485 application can only be submitted “if the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current).” The term “immediately available” in INA 245(a)(3) has never been defined, except as in 8 C.F.R. 245.1(g)(1) by “a priority date on the waiting list which is earlier than the date shown in Bulletin” or if the date in the Bulletin is current for that category.

DOS has historically never advanced priority dates based on certitude that a visa would actually be available. There have been many instances when applicants have filed an I-485 application in a particular month, only to later find that the dates have retrogressed. A good example is the April 2012 Visa Bulletin, when the EB-2 cut-off dates for India and China were May 1, 2010. In the very next May 2012 Visa Bulletin a month later, the EB-2 cut-off dates for India and China retrogressed to August 15, 2007. If the DOS was absolutely certain that applicants born in India and China who filed in April 2012 would receive their green cards, it would not have needed to retrogress dates back to August 15, 2007. Indeed, those EB-2 applicants who filed their I-485 applications in April 2012 are still waiting and have yet to receive their green cards even as of today! Another example is when the DOS announced that the July 2007 Visa Bulletin for EB-2 and EB-3 would become current. Hundreds of thousands filed during that period (which actually was the extended period from July 17, 2007 to August 17, 2007) . It was obvious that these applicants would not receive their green cards during that time frame. The DOS then retrogressed the EB dates substantially the following month, and those who filed under the India EB-3 in July-August 2007 are still waiting today.

These two examples, among many, go to show that “immediately available” in INA 245(a)(3), according to the DOS, have never meant that visas were actually available to be issued to applicants as soon as they filed. Rather, it has always been based on a notion of visa availability at some point of time in the future. The following extract from The Tyranny of Priority Dates, where Gary Endelman (who is now an Immigration Judge and is not participating in this blog) and I in 2010 proposed the concept of a provisional date for filing I-485 applications is worth noting:

It can be further argued that 245(a)(3), which requires that the alien have an available visa “at the time his application is filed,” cannot be read literally to preclude the initial filing of an adjustment application when its conditions are not met, as opposed to merely precluding the approval of such application. Otherwise ordinary concurrent filing (such as an I-140 and I-485) even as it exists today would be impermissible, because, as immigration judges periodically point out in the course of denying motions for continuance, someone who does not have an approved visa petition necessarily does not have an available visa number.

As David Isaacson has observed, there are other contexts under existing law in which one cannot simply assume that the date of “application” or date of “filing” referred to in statute or regulation means the date the application papers are filed in the ordinary sense of the word. Rather, such terms sometimes mean something closer to the date of final adjudication. So in In re Ortega-Cabrera, the examination of good moral character for the ten years “immediately preceding the date of the application” under INA § 240A(b)(1)(A) was held to entail examination of good moral character during the ten years immediately preceding the final decision in the case, not the ten years immediately preceding the date the application papers were initially filed as a physical matter. 23 I&N Dec. 793 (BIA 2005). Similarly, in In re Garcia, the Board of Immigration Appeals interpreted a regulation allowing special-rule cancellation for an alien who “has been physically present in the United States for a continuous period of [seven] years immediately preceding the date the application was filed,” 8 C.F.R. § 1240.66(b)(2), to be satisfied where “the respondent accrued [seven] years of continuous physical presence prior to the issuance of a final administrative decision for purposes of establishing eligibility for relief.” 24 I&N Dec. 179, 183 (BIA 2007).

One could thus analogize and alternatively argue that the requirement of INA § 245(a)(3) that the alien have an available visa “at the time his application is filed” actually means that there must be an available visa at the time the application is finally adjudicated. In effect, what we are ultimately saying in both cases is that the official time of “filing” for statutory purposes does not have to correspond to the date when the application papers are physically submitted and ancillary benefits are granted. Although Section 6 of the 1976 Act to Amend the INA, Pub. L. No. 94-571 § 6, 90 Stat. 2703 (1976),substituted the word “filed” for the word “approved” in INA § 245(a)(3), it should not cripple our argument that the statutory moment of “filing” is not necessarily the same thing as the moment the papers are submitted or the moment that ancillary benefits are granted.

The October 2015 Visa Bulletin announced on September 9, 2015 replaced the single priority date with a filing date and a final action date. The final action date is when the beneficiary will be eligible to receive his/her green card, but the new filing date is when the beneficiary will be eligible to file an I-485 application consistent with 8 C.F.R. 245.1(g)(1), and if the beneficiary files an I-485 application, he or she will get the benefits thereof such as an Employment Authorization Document (EAD), advance parole and protection of the beneficiary’s child from aging out under the Child Status Protection Act (CSPA).

Although this appears to be novel, the dual filing dates in the October 2015 Visa Bulletin essentially formalize DOS’ historical practice. Under the filing date, it is now formally acknowledged that visa availability is not defined by when visas can actually be issued to the beneficiary. The October 2015 Visa Bulletin views visa availability more broadly, as has been the DOS’ historic practice, as “dates for filing visa applications within a time frame justifying immediate action in the application process.” The United States Citizenship and Immigration Services (USCIS) announcement relating to the October 2015 Visa Bulletin, available at http://www.uscis.gov/news/uscis-announces-revised-procedures-determining-visa-availability-applicants-waiting-file-adjustment-status, also expansively interprets visa availability as “eligible applicants” who “are able to take one of the final steps in the process of becoming U.S. permanent residents.” These DOS and USCIS announcements provide more flexibility for the DOS to move the filing dates forward, and possibly make them even current. Although both versions of the October 2015 Visa Bulletin indicate that DOS will consult with the USCIS, this is consistent with 22 C.F.R 42.51(b), which assigns primary responsibility to the DOS in controlling visas, but considering applicants for adjustment of status as reported by officers of the DHS.

Taking this to its logical extreme, visa availability for establishing the filing date may be based on just one visa being saved in the backlogged preference category, such as the India employment-based third preference (EB-3), like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving Day is pardoned by the President and not consumed, similarly one visa can also be left intact rather than used by the foreign national beneficiary. So long as there is one visa kept available, it would provide the legal basis for an I-485 filing through the earlier filing date, and this would be consistent with INA section 245(a)(3) as well as 8 C.F.R 245.1(g)(1). Filing dates could potentially advance and become current. Therefore, there was no legal basis to retrogress the priority dates in the revised October 2015 Visa Bulletin. Rather the government could have advanced them. My declaration in support of plaintiff’s TRO in Mehta v. DOL further elaborates on the Thanksgiving turkey concept to provide a legal basis for the filing dates to move forward rather than backward. My declaration concludes, as follows:

Even if the government claims that it miscalculated the number of visas actually available regarding the filing date so as to justify moving the filing dates backwards, a filing date under the October 2015 Visa Bulletin can be established without regard to whether visas can actually be issued to an applicant. All that is needed is that a single visa should be potentially available for purposes of establishing the filing date. Accordingly, the DOS and the USCIS ought to have left intact the filing dates that were announced in the first version of the October 2015 Visa Bulletin.

Accordingly, the new filing date system established in the October 2015 Visa Bulletin allows for the filing of an I-485 application without regard to whether visas can actually be issued. On October 1, 2015, which is the start of the new fiscal year, visas will be made available in each of the preferences as statutorily prescribed, as well as to the countries within each of the preferences. It is acknowledged that there will be more foreign national applicants needing the visas than the visas that will be made available for the fiscal year. However, the filing date ought to be established based on the fact that there is a visa available in the preference category. Even if the government claims that it miscalculated the number of visas actually available regarding the filing date so as to justify moving the filing dates backwards, a filing date under the October 2015 Visa Bulletin can be established without regard to whether visas can actually be issued to an applicant. All that is needed is that a visa should be potentially available for purposes of establishing the filing date.

If the administration wishes to restore the filing dates in the October 2015 Visa Bulletin that were initially announced on September 9, 2015, and they should, there is a clear legal basis for doing so and it will be consistent with the DOS’s historic interpretation of “immediately available” under INA 245(a)(3) and 8 C.F.R. 245.1(g)(1). Moreover, since “immediately available” has not been precisely defined and is ambiguous, under Chevron USA Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), such a view of visa availability would constitute a permissible interpretation of the statute by the DOS, which is the federal agency that has been charged to primarily administer the control of visa numbers.

In its opposition to the lawsuit, the government has not disavowed the elastic concept of visa availability through the dual date system. It justifies the revisions in the second October 2015 Visa Bulletin so as to bring the filing date within 8-12 months of the final action date, but does not provide any mathematical calculations, other than the fact that there has been a retrogression in the priority dates between the September and October visa bulletins. However, the notion of visa availability, as viewed by the government, under INA 245(a)(3) is still elastic, whether the applicant is 8-12 months away or 5 years away or 10 years away. It would be one thing if the government argued that its acceptance of I-485s would lead to their immediate approval and grants of green cards, but they instead assert that the revised filing dates move the applicant to within 8-12 months of the final action date. It would be significant if the INA or even a regulation said that visa availability is determined either by the fact that green cards should be immediately issued or should not be more than 8-12 months from being issued, but there is none of that sort of precision in the INA or the 8 CFR. Accordingly, it is not outside the government's statutory authority to restore the September 9, 2015 dates or to even bring them to current under the elastic notion of visa availability, which is consistent with "immediately available" under INA 245(a)(3).

The October 2015 Visa Bulletin, according to the Oppenheim Declaration, imported the concept of qualifying dates for visa processing at consulates into filing dates, which would apply to both consular processing and adjustment of status applications. Prior to the October 2015 Visa Bulletin, qualifying dates for consular processing purposes apart from allowing the applicant to take the necessary steps for becoming documentarily qualified, did not have any legal significance in the sense that the child's age did not lock in under the Child Status Protection Act (CSPA) based on a qualifying date. Moreover, INA 245(a)(3) was only applicable to filing adjustment of status applications within the US, and this provision did not apply to qualifying dates. The October 2015 Visa Bulletin acknowledged the administration's broader understanding of viewing visa availability so as to allow applicants to file under INA 245(a)(3), and seek ancillary benefits such as 204(j) portability and also protecting the age of the childunder the CSPA. In effect, the qualifying date was elevated to have the same legal significance as the old priority date. Obviously, the government has not acknowledged this in its papers, but what the October 2015 Visa Bulletin did was legally significant, and the abrupt departure from the initially announced October 2015 Visa Bulletin was arbitrary and capricious causing hardship to thousands of applicants who were set to file I-485 applications, thus warranting a lawsuit under the Administrative Procedure Act and other grounds.

The whole idea of priority dates is not to prevent immigration but to regulate it. That is not what is happening today. If you are from Mexico or the Philippines, the family-based quotas delay permanent migration to the United States to such an extent that it is virtually blocked. The categories might just as well not exist for most people. If you are from China or India with an advanced degree, the implosion of the employment-based second preference (EB-2) and third Preference (EB-3) categories does not regulate your coming permanently to the United States; it makes it functionally impossible. While the bonds that unite family members can be expected to survive many years of waiting, and even this is painfully excruciating, how many employers will wait a decade for an engineer or geophysicist? Will the business need still exist by the time the priority date becomes current? Will the business itself? In a labor certification case, what relevancy will a determination of unavailability concerning qualified American workers retain after such a long wait? Is it fair to keep the worker tied to a single employer for so long?

In conclusion, the elastic notion of visa availability that has always been practiced, and which has been formalized in the October 2015 Visa Bulletin, is consistent with Congressional intent to not prevent immigration. A broader interpretation of visa availability better serves the purposes of the INA, and it must prevail.